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The powers of boards of health are set out in Chapter 145A of the Minnesota Statutes. This chapter authorizes the board to take action to control various types of health problems. Minn. Stat. Section 145A.05, Subd. 1, gives the public health board broad general authority to adopt ordinances "to regulate actual or potential threats to the public health." This power is interpreted broadly. Protection of the public health is one of the principal duties of government, and whatever rationally tends to promote and preserve the public health is considered an appropriate subject for legislation. Schulte v. Fitch, 62 Minn. 184, 202 N.W. 719 (1925). Both the state and its municipalities (which include counties) have wide discretion in exercising their police powers to preserve public health and safety, or to abate public nuisances. State v. Crabtree Co., 218 Minn. 36, 15 N.W. 2d (1944). For this reason, the statutory powers of a municipality to protect public health are to be interpreted broadly and liberally. State ex rel. Freeman v. Zimmerman, 86 Minn. 353, 90 N.W. 783 (1902). In light of these principles, and the now-overwhelming evidence that secondhand smoke adversely affects health, we believe Section 145A.05, Subd. 1, gives the board clear authority to regulate involuntary exposure to secondhand smoke.
In addition, the board of health is specifically authorized to adopt ordinances to define public health nuisances or provide for their prevention or abatement. Minn. Stat. Section 145A.05, Subd. 7. We believe this statutory provision provides a second, independent basis for a board to act. A public health nuisance is “any activity or failure to act that adversely affects the public health.” Minn. Stat. Section 145A.02, Subd. 17. There is now little question that extended exposure to significant levels of secondhand smoke adversely affects health.
Useful guidance in determining whether this exposure constitutes a public health nuisance can be found in the language of several other nuisance statutes which do not apply directly, but which suggest criteria that are often used to identify nuisances. Minn. Stat. Section 561.01, concerning private legal actions to abate nuisances, defines a nuisance as "[a]nything which is injurious to health...so as to interfere with the comfortable enjoyment of life or property ...." Minn. Stat. Section 609.74, concerning criminal prosecution of public nuisances, defines a public nuisance as "a condition which unreasonably annoys, injures or endangers the safety, health...comfort or repose of any considerable number of members of the public . . . ." In light of the medical evidence of the health hazards posed by continued exposure to smoke, we believe a reasonable argument can be made that smoky public facilities fit each of these definitions.
Another useful source for applying Section 145A.05, Subd 7 is a publication entitled Controlling Public health Nuisances: A Guide for Community Health Boards, prepared by the State Community Health Services Advisory Committee of the Minnesota Department of Health in January 1992. This guide suggests a process for deciding whether particular problems qualify as public health nuisances. Among several case study scenarios set out in the guide are situations in which a sand blasting firm working on a water tower is releasing paint dust into a residential neighborhood, a situation in which someone is skinning beavers in the basement of an apartment building, causing offensive odors, and a situation in which a stable's manure pile is causing odors and attracting flies. The guidebook suggests that each of these conditions is probably a public health nuisance.
While none of this is decisive, it does suggest that the board could readily come to a similar conclusion with regard to ongoing public exposure to significant levels of smoke, and that this would be within the board's statutory authority under section 145A.05, Subd. 7.
Finally, it is worth mentioning two other related provisions. The board is specifically authorized to adopt ordinances requiring the removal of "unwholesome substances" from businesses, Minn. Stat. Section 145A.05, Subd. 3; and to adopt ordinances regulating "offensive trades," which are businesses that "are hurtful to inhabitants within any county".... or "from which offensive odors arise." Minn. Stat. Section 145A.05, Subd. 6. While these statutes are less obviously applicable than the two mentioned above, arguments could still be made that tobacco smoke is an "unwholesome substance" and that any business that exposes the public involuntarily to smoke is "offensive," in the sense that the smoke is "hurtful" to employees and customers. Taken together, we believe these statutory provisions provide ample authority for the board to restrict smoking in public places.
This question asks whether the board has an obligation to act against health threats. The statutes do include certain language that is mandatory and nondiscretionary.
Minn. Stat. Section 145A.04, Subd. 8, provides that if a public health nuisance or other threat to the public health is found on any property, the board of health “shall” order the removal of the nuisance and take action against it. Section 145A.04, Subd. 11, in turn, makes it a misdemeanor for any member of a board “to refuse or neglect to perform a duty imposed on a board of health by statute or ordinance.” The CHS Administration Handbook (2000), prepared by the State CHS Advisory Committee, summarizes these and other duties of the board.
These provisions invite another question, that is, could a member of a county board, sitting as a member of the board of health, be legally compelled to act to eliminate exposure to secondhand smoke?
Frankly, we think this would be a stretch. It is true that the wording of the provisions cited above is mandatory. The use of the word “shall” normally means that an official does not have discretion to do otherwise. In this case, however, any argument that board members have no choice is undermined by the subjective nature of defining what is and is not a "public nuisance." In the absence of a specific statute or ordinance, there is no fixed standard for determining what is or is not a nuisance. Courts say this decision is always relative and depends on the facts of a specific situation, which must be weighed to decide whether the condition in question substantially interferes with the health, safety or other interests of the public. Because there is currently no law defining a smoking section in a restaurant as a public nuisance, it is up to the board of health to decide what is and is not a nuisance.
While there is overwhelming evidence that secondhand smoke is indeed a health hazard, and this evidence provides ample support for an ordinance, it would be a far different matter to argue that it is illegal for a member of the board to come to a different conclusion. Courts frequently acknowledge that the definition of what is a nuisance changes over time and is affected by evolving public sensibilities and norms. Although public norms related to smoking are changing quickly, the continued widespread acceptance of smoking and, indeed, the fact that even the state Clean Indoor Air Act continues to accept the existence of smoking sections, would make it very difficult, in our judgment, to argue that there is any legally enforceable duty on board members to adopt the proposal. Similar potential arguments have been raised unsuccessfully in several counties with regard to large agricultural feedlots, where, again, the answer seems to be that the determination whether they do or do not constitute a public health nuisance is within the judgment of the board members.
Despite this conclusion, we do believe the general legal duty of the board of health to protect the public health, and the board's specific duty to abate public health nuisances, offer strong moral arguments, if you will, for acting decisively in the area of secondhand smoke. We believe the legal duties of the board of health also offer answers to potential questions about whether this issue should be addressed at the county level or whether the county should instead wait for others at the state or national level to solve the problem.
Minnesota law bans the use of cigarette vending machines, except in adult-only facilities. State law provides: “No person shall sell tobacco products from vending machines.” This subdivision does not apply to vending machines “in facilities that cannot be entered at any time by persons younger than 18 years of age.” Minn. Stat. § 461.18, Subd.2. (2000).
Only “in facilities that cannot be entered at any time by persons younger than 18 years of age.” Minn. Stat. § 461.18, Subd. 2 (2000). Examples cited during the legislative discussions in 1997 included “adult entertainment” venues and bars or music venues that “card” customers at the door.
Does it matter whether a vending machine uses an electronic locking device? No. The state statute makes no exception for machines with locking devices. Although an earlier state law permitted the use of lockable vending machines in some settings, Minn. Stat. §325E.075, Subd. 2(3)(1996), repealed, 1997 Minn. Laws, Ch. 227, §§6,8, that earlier law was repealed in 1997 and replaced by the law quoted above. The District Court of Ramsey County has determined that a lockable vending machine “falls squarely within the clear language of the statute….” Memorandum, DVM, Inc., et al v. State of Minnesota (Ramsey County District Court, File No. C8-98-8801, April 25, 1999, Marinnan, J.)
The decision was based on evidence that electronic locks do not work. Vending machine owners argue that locks force underage customers to speak to an employee, who then checks their identification. The old state law permitted this approach. In 1997, however, the legislature repealed the earlier law and imposed a blanket prohibition. This tightening of the law was based on studies and reports showing that the promised benefits of locking devices are prone to abuse in the real world. In 1998 alone, for example, minors conducting compliance checks under the supervision of the city licensing department were able to buy cigarettes from vending machines at eight St. Paul establishments, despite the fact that most of these establishments used locking devices and claimed to check customers’ identification. Additional evidence supporting the state’s decision to outlaw this approach is summarized in the attached legal memorandum, filed by the state in the recent litigation cited above.
State law sets a “floor,” or minimum level of regulation. Cities can impose additional restrictions, but cannot weaken or compromise the state requirements. Chapter 461 of the Minnesota Statutes authorizes cities and counties to regulate tobacco sales and creates minimum elements that must be incorporated in city ordinances on the subject. Cities are not preempted from going beyond these requirements.
Sections 461.12 to 461.18 do not preempt a local ordinance that provides for more restrictive regulation of tobacco sales. Minn. Stat. § 461.19 (2000).
This allows a city to impose additional restrictions (for example, a city could require that any vending machines used in an adult-only facility must also use locking devices), but it does not authorize a city to relax or compromise the restrictions of the state law.
No. The state law imposes a total prohibition on vending machines outside of adult-only facilities. That total prohibition is the floor. Cities can add restrictions, but cannot undo this prohibition. Nor can they permit the use of vending machines in locations where state law prohibits them—no matter how many protective measures are imposed or how well intentioned they may be.
The distribution of free cigarettes is regulated by Minnesota law. Minn. Stat. Section 325F.77 provides:
Subd. 3. Legislative intent. Because the state prohibits both the use of tobacco products by minors and the furnishing of tobacco products to minors, and because the enforcement of an age-related restriction on the promotional distribution of tobacco products is impractical and ineffective, it is the intent of the legislature to control the distribution of these products and discourage illegal activity by prohibiting all promotional distribution, except as allowed in this section.
Subd. 4. Prohibition. No person shall distribute smokeless tobacco products or cigarettes, cigars, pipe tobacco or other tobacco products suitable for smoking, except that single serving samples of tobacco may be distributed in tobacco stores.
For purposes of this statute, "to distribute" means "to give products to the general public at no cost or at nominal cost for product promotional purposes," Minn. Stat., Section 325F.76, Subd. 3.
This statute is enforceable by the Attorney General:
325F.78 Remedies. The attorney general may institute a civil action in the name of the state of Minnesota in the district court for an injunction prohibiting any violation of section 325F.77. The court, upon notice to the defendant of not less than five days, and upon proof that defendant has engaged in the practice prohibited by section 325F.77, may enjoin the future commission of the practice. The court may impose a civil penalty in an amount not to exceed $5,000 for each violation. The attorney general may recover costs and disbursements, including costs of investigation and reasonable attorneys fees.
In addition, this statute is arguably enforceable by any private citizen or organization injured by the practice, acting pursuant to Minn. Stat. Section 8.31, Subd. 3a. This is a "private attorney general" statute allowing private parties to bring actions against those who violate Minnesota laws "respecting unfair, discriminatory, and other unlawful practices in business, commerce, or trade . . .." A private enforcement action would require a showing that Section 325.77 is one of the statutes regulating commercial practices that the legislature intended to include within the scope of this general phrase.
While Section 325.77 appears to offer the most direct basis for addressing this issue, also the national Master Settlement Agreement (MSA) contains language restricting the distribution of free cigarettes by the manufacturers participating in the MSA. Minnesota is not a participating state in the MSA, and the MSA's provisions are not directly applicable here. Nevertheless, Minnesota's own tobacco settlement contains what is sometimes referred to as a "most favored state" provision, entitling it to claim the benefit of any MSA provision that, in the opinion of the Minnesota Attorney General, affords additional or greater protection to public health than do the provisions of the Minnesota settlement itself. It is therefore possible that the Minnesota Attorney General might invoke the MSA language in connection with activities in Minnesota.
Of course, the MSA provision governs only the conduct of manufacturers, and any attempt to use this language would hinge on the involvement of a manufacturer in the activities involved. This would be a fact-specific determination, but it is our understanding that many bar-based promotional activities are sponsored by manufacturers, with the consent or participation of the bar owners and their employees. This suggests that the MSA provision may provide an additional legal basis for taking action against such practices.
The Minnesota Clean Indoor Air Act, Minn. Stat Section 144.411 to 144.417, provides in part that:
144.4165 Tobacco products prohibited in public schools. No person shall at any time smoke, chew, or otherwise ingest tobacco or a tobacco product in a public school, as defined in section 120A.05, subdivisions 9, 11, and 13. This prohibition extends to all facilities, whether owned, rented, or leased, and all vehicles that a school district owns, leases, rents, contracts for, or controls. Nothing in this section shall prohibit the lighting of tobacco by an adult as a part of a traditional Indian spiritual or cultural ceremony. For purposes of this section, an Indian is a person who is a member of an Indian tribe as defined in section 260.755 subdivision 12.
The key question is whether school “facilities” include school grounds, athletic fields, parking lots and the like, or whether “facilities” are instead limited to school buildings and related structures. We are not aware of any authoritative interpretation of this term, as it used in the Clean Indoor Air Act, either in case law or in the Minnesota Health Department rules implementing the Act. However, this language has been consistently interpreted as applying only to buildings or indoor facilities. It is our understanding that the question whether the no-smoking requirement should be extended to outdoor facilities has been brought before the Minnesota Association of School Boards at some point in the past, but that that association has not acted to adopt such a policy. In practice, therefore, the law has been regarded as applying only to indoor settings, and the question whether to allow smoking in outdoor settings has been left to each school board or to the administration of each school to determine, as a matter of policy.
The fact that the law may have been interpreted in practice as applying only to indoor settings is not decisive as a matter of law. That is to say, one could still plausibly argue for a broader interpretation of “facility.” However, when a statute is ambiguous, the courts do normally give some weight to a consistent pattern of interpretation by the officials responsible for its implementation. Above and beyond the rules of statutory construction in a judicial setting, a settled practice of reading the law narrowly may make it unlikely that the responsible authorities could be persuaded to re-interpret the law more broadly.